*1 Frasier, Gullekson, Larry A. & court with Frasier instructions to DIS- Tulsa, appellant. for MISS. Larry Derryberry, Atty. Bill J. J., BUSSEY, J., con- P.
Bruce, Elaine Alex- Carol cur. ander, Legal Intern, appellant, Dale Roy, Lewis was charged Degree with Burglary in the First O.S.1971, 1431,
in violation of in Tulsa § County District Court Case No. CRF-76- MILES, Appellant, David Allen punish- 1958. A him convicted and set at (7) years’ ment seven imprisonment. The STATE of m.,
At about wit- complaining 2:00 a. apartment arguing ness was inside his through a who window with Court Criminal of Oklahoma. on the apartment. outside lawn appellant complaining struck at and, intentionally witness with his fist not, appellant knocked off the screen. The
then entered apartment through
screenless window and beat the com-
plaining witness. evi-
Unquestionably, there sufficient gone
dence to have assault to the on an
charge charged had with appellant been
assault. there was not sufficient go
evidence to degree on first O.S.1971, 1431,
burglary charge. Title 21
provides:
“Every person who and en- breaks into
ters in the night dwelling time the house another, in which there at the time is
some being, human with to commit intent therein,
some crime .:
[******]
“3. ... in the burglary degree.”
first (Emphasis added) breaking entering were
not the sort contemplated Legisla- by the statute,
ture in this but were concomitant physical
with complaining attack on the
witness. The jury should direct- have been
ed to return guilty. a verdict of not
Therefore, any other we need not reach error, appellant’s
of the propositions of
the case is and REMANDED REVERSED
228 two
After and a half hours of delibera- tion, jury judge the the that foreman told two, jury the stood to and he did not at ten they to reach a ver- believe would able dict. The court noted the time was that hour, past pondered the dinner aloud fur- jury to to deliberate whether ask the and have ther or to send them to dinner them deliberate further dinner. Af- after attorneys, ter a brief conference with the judge gave jury the an “Allen” instruc- and, tion on the recommendation of the foreman, delib- sent them back for further They eration. in returned with a verdict minutes. sup argues that defendant
plemental
instruction,
together with the
remarks,
judge’s
jury
into
coerced
His chief
reaching a unanimous verdict.
objection
it did not
to the instruction is that
tell
jurors
right
to hold
they
had a
to their honest
He claims that
convictions.
judge
in
effect ordered the
return with a unanimous verdict.
Sellers,
Farrar,
Jack B.
Sapulpa,
Gus A.
We believe that when
“Allen” instruc-
an
for appellant.
given
tion is
be told that
should
Larry Derryberry,
Atty.
Duane N.
agree;
they
being
are
forced
Rasmussen,
carefully the ar-
they
while
should consider
guments
opinions
jurors, in
of the other
person
end each
must decide the case
upheld
for himself or herself. We have
Okl.Cr.,
State,
such instructions in Wilson v.
David
Miles,
Allen
herein
State,
(1976),
forth in the which was recommendations for leniency are not bind foreman and filed with ing State, judge King on the trial Okl. — the defendant’s motion for a new trial: Cr., (1976); but it is also true that such way “After deliberations under recommendations can influence had been judge deciding grant pro for some time we whether to were returned to the *3 by Judge courtroom and when asked bation. The bailiff should not have dis I stated numerically making that we stood 10 to 2 suaded the in this case from it to make. my opinion and that that no fur- the recommendation wanted progress ther further could be made foregoing For the above and reasons the Judge deliberations. case is REVERSED and REMANDED to read the additional instruction we re- the District Court. turned room addi- and after tional agreed deliberation the jury upon a J.,P. concurs in results. verdict guilty of with recommendation leniency Judge suspend BUSSEY, J., dissents. sentence. “We spelling weren’t sure of the correct BUSSEY, Judge, dissenting: ‘leniency’ juror so some knocked on the I would affirm in with out accordance jury room door and asked the bailiff for a prior decision in Robinson dictionary. opened door was juror Jimmy D. Brown went into the outer office for dictionary. a The bailiff
stepped inside I room as was
writing the verdict on the form. About time Mr. Brown came back and in-
formed me of spelling the correct of ‘le-
niency’. I had written ‘we recommend
leniency’ and had started to write ‘and
urge suspended sentence’ or words to WATTS, Appellant,
that effect Wendell Lee when the bailiff asked or I told him doing what we were and the bailiff job said it wasn’t recom- our STATE mend leniency, only to find him guilty, and that the rest was Judge. I then erased I had the words gave written and the verdict to the bail- Oklahoma. Court of Criminal iff. “I would not have for conviction voted
except for the recommendation for le-
niency suspended, sentence
but, said, when the what bailiff said he I jurors remaining
was tired and those room said it late to call was too
the others back to leave begun who had along room so I with what went signed said and verdict.”
A similar affidavit another jury.
member of the
The Attorney General concedes that
above communication was error — see 857 and 894. It is true that §§